DPP v Kenny

• Jurisdiction: Ireland
• Judge: Mr Justice Barron
• Judgment Date: 08 March 1990
• Neutral Citation: 1990 WJSC-HC 1630
• Docket Number: 464 SS/1989
• Court: High Court
• Date: 08 March 1990

DPP v. KENNY

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS

-v-

RICHARD KENNY

1990 WJSC-HC 1630

464 SS/1989

THE HIGH COURT

Synopsis:

CONSTITUTION

Personal rights

Privacy - Motorist - Intoxication - Suspicion - Statutory procedure - Compliance - Persons implementing procedure - Observance of motorist's condition - Competent witnesses for prosecution - (1989/464 SS - Barron J. - 8/3/90) - [1992] 2 I.R. 141

|Director of Public Prosecutions v. Kenny|

ROAD TRAFFIC

Alcohol test

Absence - Driver - Condition - Observers - Evidence - Admissibility - Accused driver - Personal rights - Privacy - Persons required by law to attend arrested driver - Competent witnesses of driver's condition - Road Traffic Act, 1961, s. 49 - Road Traffic (Amendment) Act, 1978, s. 13 - Constitution of Ireland, 1937, Article 40 - (1989/464 SS - Barron J. - 8/3/90)

|Director of Public Prosecutions v. Kenny|

Citations:

ROAD TRAFFIC ACT 1961 S49(6)

ROAD TRAFFIC ACT 1961 S49(1)(4)(a)

ROAD TRAFFIC (AMDT) ACT 1978 S10

ROAD TRAFFIC (AMDT) ACT 1984 S3

MAGEE V AG 1974 IR 284

ROAD TRAFFIC (AMDT) ACT 1978 S13

SULLIVAN V ROBINSON 1954 IR 161

KENNEDY & ARNOLD V IRELAND 1987 IR 587

1 Judgment of Mr Justice Barrondelivered the 8th day of March 1990

2 In this case the accused was arrested under the provisions of Section 49 (6) of the Road Traffic Act 1961. On the arrival at the Garda Station he consented to a designated registered Medical Practitioner taking from him a sample of his blood. No analysis was ever made of that sample. Subsequently the accused received a summons to appear at Wicklow District Court to answer a charge that he did on the 29th May 1988 at Ballydowling, Glenealy, County Wicklow, a public place in the Court area and district aforesaid drive a mechanically propelled vehicle Registered No. 648 EIK whilst he was under the influence of an intoxicant to such an extent as to be incapable of havingproper control of his vehicle contrary to Section 49 (1) (4) (a) of the Road Traffic Act 1961 as inserted by Section 10 of the Road Traffic (Amendment) Act 1978 as amended by Section 3 of the Road Traffic (Amendment) Act 1984.

3 At that hearing it was submitted that the doctor who took the blood sample could not give evidence either of his observation of the accused or as to his opinion as to the fitness of the accused to drive a mechanically propelled vechicle. The basis upon which this submission was made was that such evidence would be a breach of the accused's constitutional right to privacy and that he should have been cautioned that such evidence might be tendered at the hearing of any charge against him.

4 The Case Stated raises two questions:

5 (1) Whether such a right of privacy exists; and

6 (2) If there is such a right to privacy, does the same extend to the right not to be submitted (unknown to the accused) to observation by a Medical Practitioner or any other person for the purpose of obtaining evidence against him and without being cautioned in that regard and consenting thereto.

7 The right to privacy is put as being a right to be left alone. Reference has been made to Attorney General v. Magee and to Kennedy v....